Reconciling “Inalienable Rights” and Government by Consent

An article in the New York Times yesterday discussed a new controversy about the Declaration of Independence—whether there is period after “life, liberty, and pursuit of happiness.” Any controversy that encourages more people to focus on the Declaration and recall our past is most welcome. Nevertheless, I do not believe that the resolution of this debate would fundamentally change the Declaration’s important understanding of the relation between liberty and government. However the document is punctuated, I see three important propositions of political theory implicit in its majestic words:

1. Government is limited to securing “inalienable rights.” Thus, government while necessary is limited by reference to the rights it protects. It is a servant, not a master of citizens.

2. These inalienable rights are largely negative rights and the procedural mechanisms of justice to assure them. That is clear not only from the understanding of rights at the time but from the rest of the document. The Declaration complains of violations of negative rights, like the right to trade freely, and the failure of procedures, such as trials, to provide justice. What the signers of this document do not demand is positive rights from government—benefits and handouts. Indeed, their concern is focused on the “swarms of officers”—the big government of the day—who “eat our substance” and pose a threat to liberty. Thus, the Declaration is inconsistent with the Progressive notion that it is up to the collective to define rights.

3.The best way to keep government within its “just” bounds is to establish government by consent. Thus, the Declaration embraces democracy, even as it legitimizes government by reference to rights, not voting. This aspect of the Declaration creates a tension with which we continue to live. Protecting rights through justice is the end of government. Government by consent is but the means of realizing that justice.

As we have found throughout our history, democracy is an imperfect means of realizing justice. Creating a Constitution—a higher law—through a supermajoritarian, albeit still democratic process, helped reconcile democracy with rights, but did not create an permanent accommodation. Indeed, the ability of special interests and majorities to use the mechanisms of democracy to violate the liberties of others remains our most pressing danger. As we celebrate this July 4, we would do well to consider mechanisms appropriate to the our day better to resolve this fundamental tension in our first Founding document.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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“The best way to keep government within its “just” bounds is to establish government by consent.”

Is it, really? Has it been in our own experience over the past 80 years? Is that it; “consent,” standing alone, sufficient to maintain “just” bounds to government?

If so, then we must accept changing delineations of “just” bounds from those implied in the documents cited and the Constitution which followed.

If not, then we should examine how the present Federal Administrative State (the 4th branch of government) has come to be established through the passive acceptance, positive consents and occasional demands of the electorate; presumably acting through “representatives.”

Has there been passive acceptance or positive consent to the extension of those “just” bounds to the provisions of actuarially determined benefits to particular age groups (Social Security); to Medicare for the benefit of a particular age group; to Medicaid for the benefit of a particular economic class; to alleviation of risks of credit and other forms of transactions; to efforts to influence the course of educational activities at multiple levels; to engage in insuring activities and the prescriptions of requirements for conditions of private contracts; and on into the many extensions of the activities of the Federal Administrative State? If all this has not been by consent and passive acceptance, how has it occurred?

Perhaps equally, if not more, important are the motivations that have determined those consents and acceptances.

In the “Modern States” of Western Civilization in particular, the embodiments of authority which constitute “States” have occurred through the passive acceptance or positive consent of those subject to that authority.

In the precedents of history those embodiments of authority have been imposed by physical or ideological forces, or their combination. In the periphery of Western Civilization we are observing continuations of those precedents.

The fact that we have advanced, to varying degrees, from those precedents does not indicate that consents and acceptance, **without predominance of motives that assure “just” bounds to embodiments of authority** will be sufficient to preserve individual liberty and the freedoms which comprise it.

Even if we accept that concept of “non-transferability,” as to the nature of certain human “rights’ (which are social in nature) it has not been demonstrated that those “rights” cannot be **abandoned.**

One may have come into possession of a property, a dwelling, which by its condition and terms of possession one cannot transfer to others. But, finding its upkeep and responsibilities of maintenance “burdensome,” and being attracted to other forms of dwellings, simply abandon the first (and its demands) for something else – and ultimately the original un-transferable dwelling deteriorates, even decays, to something no longer habitable. It may have been unalienable but that did not insure its permanent possession.

Quite right Nancy. A right is something that is granted to someone. Unalienable rights are granted by God. They are things that are part of our nature. Our humanness is unalienable. Our lives are our own, even if our bodies are shackled. Our ability to make choices of conscience cannot be removed from us. Our inner motivation to achieve that which we desire cannot be taken from us. These things are a part of what makes us “us.”

Government cannot remove, or another word, alienate, the things granted to us by God directly. Neither can government protect and preserve them.

Unfortunately, Mr McGinnis seems to have missed class the day they discussed this in law school. Rarely have I found so much to disagree with in one of his essays. Government does not secure these rights. Government cannot, short of giving someone a forced lobotomy. Government secures protections from harm and occasionally provides opportunities for advancement. Our unalienable rights have nothing to do with government at all in any way, shape or form, unless perhaps one were to argue that government is an extension of our exercise of our pursuit of happiness.

Richard, I do not entirely disagree w/your (1), “(T)he present Federal Administrative State (the 4th branch of government) has come to be established through the passive acceptance, positive consents and occasional demands of the electorate; presumably acting through “representatives… (2), If all this has not been by consent and passive acceptance, how has it occurred?”
It is not, in its entirety – the problem with “consent –as “it has occurred”. The Administrative State that we have been witnessing is the product of a progressive collection of Congressmen/women with the aid of a very, very, progressive Executive (and a past federal court participation that the people were compelled to, by Court degree; and more than “occasional demands of (a progressive) electorate minority”.)
Then you continued to, “In the “Modern States” of Western Civilization in particular, the embodiments of authority which constitute “States” have occurred through the passive acceptance or positive consent of those subject to that authority.” I wish you would list the “States” that you considered as “the passive acceptance or positive consent of those subject to that authority”, and also list those States that continue to express their opposition to the federal branches usurpation of 10th Amendment.
Your last two paragraphs appear to be reasoning — that you find no solution to the problem; where someone as intelligent as you – should be lifting the readers to all of the solutions that are available to them by our Constitution.
I believe that John O. McGinnis post essay here, has attempted to do just that for the reader.
Respectfully, John
(Facebook, author of The Tribute)

“The Administrative State that we have been witnessing is the product of a progressive collection of Congressmen/women with the aid of a very, very, progressive Executive (and a past federal court participation that the people were compelled to, by Court degree; and more than “occasional demands of (a progressive) electorate** minority”**.)” [**added]

The post was: ” occasional demands of **the** electorate;”

There can be no handing off to: “a progressive collection of Congressmen/women with the aid of a very, very, progressive Executive (and a past federal court participation that the people were compelled to, by Court degree; ” Elections have consequences.
Who elected the Senate we have today – and to what end; to “represent” what values or principles?

Is Social Security “popular” today (politically sacrosanct?); is Medicare; Medicaid, Federal “Aid” to Education? Has the sun risen with PPACA? What is it people “want” or think they want; and why do they want it in the “Federal” format? What are the motives?

Behind all that, how have those motives been formed over the past 60-80 years; based on what “values,” individual “values?”

“I wish you would list the “States” that you considered as “the passive acceptance or positive consent of those subject to that authority”, and also list those States that continue to express their opposition to the federal branches usurpation of 10th Amendment.”

“States” here is in the context of Western Civilization, not States or Commonwealths of the U S. All of those original 13, in 1776, did in fact exist as embodiments of authority by reason of consent of those subject to their authority. The divisions came after 1840.

” that you find no solution to the problem; where someone as intelligent as you – should be lifting the readers to all of the solutions that are available to them by our Constitution.”

The “solutions” are **not** “available to them **by** our Constitution.” They may be available to an electorate motivated to live within the delineations of that Constitution; but, if that were so at this juncture of our history, we would not now have a Federal Administrative State as a fourth (and extra constitutional) branch of government.

The “solution” is not “in our stars” or stripes, nor in any documents, it lies in the selves we have become.

Mr. Schweitzer wrote: The “solution” is not “in our stars” or stripes, nor in any documents, it lies in the selves we have become.

Exactly. Our present dire situation can be best explained, I believe, by the loss of Virtue among a sufficient number of people. We are no longer, as John Adams warned us we must remain if we want to preserve this Republic, a ‘moral and religious people’.

Any Restoration of our Freedoms and Liberties we might achieve – through such measures as a Convention Of The States – will not last long if we do not recapture that kind of Virtue that guided The Founders.

Sorry to come late to the discussion; I do have a question about Professor McGinnis’s point #1. How do you construe the affirmation that “it is the Right of the People … to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” In this view, government is a matter of form, with an organization of powers (legislative; executive; judicial;; derived from the people, to be sure), arranged according to certain principles (e.g., military subordination to civilian authority), for the sake of the People’s Safety and Happiness. The latter formulation seems to be a teleological statement. And I think one would be forcing matters to reduce the Safety and Happiness of the people to the protection of individual rights. In other words, I think the political principles of the Declaration go beyond mere rights’ protection. Safety and Happiness seem to be a formula of what I would call the Alpha and Omega of the political community’s good. For instance, couldn’t the people decide that for the sake of its happiness, public education should be provided and mandated? (Btw: I’m not a Progressive. Just a reader of the Declaration.)

I do not think that you are a progressive for advancing a claim that the people may determine that their “happiness” requires universal public education – or a national highway system, for that matter (forgetting for the moment whether there is a specific grant of authority to do so).
What I think is at issue is the extent to which one may construe “happiness” (as an example) to justify all sorts of government action on behalf of certain groups. What we seem to have lost is the balancing action that would weigh that which is “nice to have” against that which is permissible AND does not impinge upon certain basic fundamental tenets of our regime. It would be nice for me to tear down my neighbors ugly house – but I really have no basis politically / morally for doing so.
All too often the courts have decided that what is “nice” is to take precedence over that which is permissible.

“For instance, couldn’t the people decide that for the sake of its happiness, public education should be provided and mandated?”

Restated:

Couldn’t some (50.1%-65%, etc.) of the “people” (undesignated) decide that, for the sake of their concept of what all should seek or accept as “happiness,” public education should be provided by some for all; and that the coercive powers of government (fines, incarceration, seizures, etc.) should be deployed to the end of attaining their concept of happiness?

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